Facial Challenges and the Commerce Clause: Rethinking Lopez and Morrison

Rosman, Michael E., Faulkner Law Review

In May 2001, I participated in a symposium sponsored by the Stanford Law Review on the Supreme Court's federalism jurisprudence. (1) During this symposium, former Solicitor General Seth Waxman asked the following question (which I am paraphrasing): Why was Alfonso Lopez allowed to challenge the Gun Free School Zones Act in United States v. Lopez (2) as an improper attempt by Congress to regulate non-economic activity when his own conduct (delivering a gun to another student for $40) (3) was quintessentially economic? (4)

"Good question," I thought at the time, and I was not particularly satisfied with the answer he was given. (5) The Supreme Court has recently told us that the challenges in Lopez and United States v. Morrison (6) were challenges that the statute "fell outside Congress' commerce power in its entirety," (7) which is generally understood to mean a facial challenge, but I think this just begs General Waxman's question. Why should Alfonso Lopez have been permitted to make a facial challenge if the statute could be (with perhaps some minor surgery) constitutional as applied to him?

This piece attempts to answer General Waxman's question. I believe that Lopez and Morrison were, in fact, "overbreadth" challenges to the laws in question. (8) This answer, of course, requires an explanation itself, since the Court has suggested a limited role for overbreadth challenges, perhaps limited to the First Amendment context. Accordingly, in Part I of this piece, I set forth the holdings in Lopez and Morrison. In Part II, I briefly go through the Supreme Court's jurisprudence on facial challenges to statutes and focus to some degree on what the Court has said when faced with facial challenges to a statute as being outside of Congress's enumerated powers. Further, I consider various academic theories that have suggested that such challenges can only be made facially, and conclude that, while intriguing, they do not reflect the Court's jurisprudence or most people's intuition.

In Part III, I argue that if Lopez and Morrison were facial challenges, as the Court has told us, it can only be because they were challenges to the statute as being overbroad. I provide some rationale as to why the Court has permitted overbreadth challenges in this area but not elsewhere. I also address various other approaches by academics to explain why the Court has permitted facial challenges. Specifically, I address the theory of Professor David Franklin, who has argued that Lopez and Morrison are not overbreadth cases at all, but rather cases in which the Court is looking for an objective legislative purpose to the statute. (9) I also consider Professor Richard Fallon's recent and very brief, passing reference to Lopez as an overbreadth case, which, if I understand it, is significantly different from what I argue here. (10)

Finally, in Part IV I offer a few thoughts about what my hypothesis means for challenges to other statutes, particularly the statute challenged in Gonzales v. Raich (11) and the individual mandate of the Private Protection and Affordable Care Act.

PART I

In Lopez, the Court considered a challenge to the Gun Free School Zones Act (GFSZA) (12) to be beyond Congress's power to regulate commerce "with foreign Nations, and among the several States, and within the Indian tribes." (13) The GFSZA made it illegal for anyone to "knowingly possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." (14)

After reciting a brief history of the Court's jurisprudence under the Commerce Clause, Chief Justice Rehnquist identified "three broad categories of activity that Congress may regulate under its commerce power." (15) First, it could regulate the "channels of interstate commerce," for example, by prohibiting those channels from being used for immoral purposes. (16) Second, it could regulate the instrumentalities of interstate commerce or persons or things in interstate commerce. …

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